Stockham v. Munson

Walkeb, J. The instrument declared upon, reserved thirty-six per cent, interest per annum, on its face, and was so described in the plaintiff’s declaration. The trial was had on the general issue, and the defendant sought to avoid the payment of interest, upon the grounds of usury. This presents the question, whether the defendant must rely upon the statute, by a plea, to be allowed-the benefit of the defense. The third section of the act of January, 1857, (Scates’ Comp. 600), provides, that “if any.person or corporation in this State, shall contract to receive a greater rate of interest than ten per cent., on any contract, verbal or written, snch person or corporation shall forfeit the whole of said interest, so contracted to be received, and shall be entitled only to recover the principal sum due to such person or corporation.” This enactment is essentially different from the act of 1845, which provides that when it shall appear from the pleadings and on the application of the defendant, that usurious interest had been reserved or taken, the defendant should recover his costs, and the plaintiff should suffer the forfeiture provided by the statute. The act of 1857 declares a forfeiture of the whole interest, when a usurious rate has been contracted for, without any reference to the pleadings. When this change was made, it must have been with a design to render a plea of usury unnecessary, where it appeared by the declaration or contract sued upon, where the general issue is alone interposed. We can perceive no other reason for making the change. At common law, the defendant, under the general issue in assumpsit, was authorized to give in evidence any matter which showed that the contract was illegal. Infancy, lunacy, coverture at the time the contract was entered into, also gaming and usury, might be relied upon under non-assumpsit. 1 Chit. Pl. 511. And the rule there announced is based upon Strange, 438, Comyn’s Dig., Pleader, 2 G. 7, Fortes. 336. The same rule is announced in Reid v. Pierpont, 1 J. R. 124; Levy v. Grady, 3 Cranch, 180. In the last of these cases, it seems to be taken as granted, that the law is well and fully settled. There can be no doubt that such was the common law, and unless the plea is required by statute, the defense may be made under the plea of non-assumpsit. This statute has not required this defense to be specially pleaded, and it is left as at the common law. The judgment of the court below is therefore reversed, and the cause remanded. Judgment reversed.